Court of Appeal for Ontario

Date: February 19, 2019 Docket: C62044

Justices: Pepall, Lauwers & Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Yuriy Dudar Appellant

Counsel:

• Boris Bytensky, for the appellant
• Christopher Webb, for the respondent

Heard: September 20, 2018

On appeal from the conviction entered by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury, on December 2, 2015.

Pepall J.A.:

Introduction

[1] On December 2, 2015, the appellant was convicted of impaired driving causing bodily harm and of operating a motor vehicle with excess alcohol causing bodily harm. He appeals from his convictions and seeks leave to introduce fresh evidence.

[2] The convictions arose from a multi-vehicle accident that occurred on Dixie Road in Mississauga on October 19, 2013, at approximately 6:20 p.m. At trial, the Crown alleged that the appellant was driving the white van that caused the accident, and was impaired while doing so. The appellant's breath samples registered 296 and 279 milligrams of alcohol in 100 millilitres of blood, approximately 3.5 times the legal limit.

[3] At the commencement of the argument on appeal, appellant's counsel advised that he was no longer pursuing his assertion that the appellant had a free-standing right to an adequate investigation. Rather, the appellant submits that the inconsistencies in the evidence on the identification of the driver of the van, together with the absence of a thorough police investigation, rendered the verdict unreasonable.

[4] The appellant also seeks leave to introduce fresh evidence pertaining to the identity of the driver of the white van. The proposed fresh evidence includes an affidavit of a witness, Yuriy Teodorovych, who situates the appellant in an intoxicated state in the passenger seat of the van which Mr. Teodorovych says was driven by another man shortly before, and in the vicinity of, the accident. The appellant submits that the fresh evidence suggests that it was his former co-worker "Volodya" who drove the van and caused the accident rather than the appellant.

[5] For the reasons that follow, I would dismiss the motion to admit the fresh evidence and the appeal.

Background Facts

[6] Identification of the driver of the white van is the primary issue on this appeal.

[7] I will first address the identification evidence given by the witnesses at the scene of the accident followed by the observations made by the police who arrived within six minutes of the accident. I will then discuss the issue of the fresh evidence. Lastly, I will address the unreasonable verdict ground of appeal.

Evidence at Trial

[8] It was a dark and cloudy evening on October 19, 2013. A multi-vehicle accident was about to ensue. A white van bearing a Drain City Plumbing logo drove into the rear of a black Nissan Altima, driven by Grazyna Linder. The Nissan Altima hit a stationary Dodge Durango driven by Piedad Tello. The Dodge Durango hit a Toyota Corolla driven by Milanka Milosevic that was stopped at a red light in front of the Dodge Durango.

(a) Grzegorz Linder

[9] Grzegorz Linder was in the passenger seat of his Nissan Altima. He described his car as being completely smashed and pushed in like a harmonica. He stated that the bumper of the white van was "basically inside of our trunk". He saw a white male get out of the driver's side of the white van. He described the man as bald, wearing a jacket and a hat. Mr. Linder stated that he looked at the man's eyes and expression and it looked like he was intoxicated. Mr. Linder asked him whether he was drunk. The man responded that everything was going to be okay.

(b) Piedad Tello

[10] After the collision, Piedad Tello, the driver of the Dodge Durango, got out of her car. She stated that after the accident, a chubby white man got out of the driver's seat of the van, kicked the Nissan Altima and then went back and sat in the driver's seat of the van. She described him as appearing mad, upset and swearing. Ms. Tello further observed that he was "maybe 160" centimetres (5 feet 3 inches) tall. He was wearing a vest that she believed to be red and in cross-examination, she acknowledged that it was likely a red hoodie. She was two to three metres away from the van when making these observations.

[11] When the police arrived, the driver was inside the van and she then saw him get out again. She observed the police talking on the driver's side of the van. The man left with two police officers.

(c) Milanka Milosevic

[12] Milanka Milosevic, the driver of the Toyota Corolla, testified that she did not see the accident but she described the driver of the van as being a white man. She could not describe his height but said he "wasn't as tall". She was not paying attention to him. She saw two police officers taking him away from the driver's side of the van.

[13] In court, none of these three witnesses were asked to identify the appellant as the driver of the van. The appellant did not testify at trial.

(d) Police Witnesses

[14] Officer Nick Carrol, a member of the Peel Regional Police, arrived at the scene of the accident at 6:26 p.m. He approached the appellant, who was smoking a cigarette and leaning against the driver's side of the van with the driver's door open. He was wearing reflective orange construction colors with a yellow "X" on the chest and a jacket or a vest. He had bloodshot blue eyes. Officer Carrol detected a strong odour of alcohol on his breath.

[15] Officer Osama Naqvi also attended at the scene. He arrived at 6:30 p.m. He identified a white male wearing an orange reflective jacket or a vest bearing a Drain City Plumbing logo. He stated that the driver was six feet tall, of a heavier build, balding on top with hair on the side and a little bit scruffy. Officer Naqvi detected a very strong smell of alcohol on the driver's breath. His face was flushed and he was squinting and had trouble standing.

[16] The police obtained the appellant's driver's licence which described his date of birth as June 24, 1986 and contained his photograph. In court, both Officer Carrol and Officer Naqvi identified the appellant as the driver of the white van. They had no recollection of asking to see evidence of the ownership of or insurance for the van at the scene. Neither officer interviewed or recorded the names of anyone else at the scene and could not recall whether the appellant had the keys to the van.

[17] The appellant was arrested at 6:36 p.m. The police and the appellant arrived at the police station at 6:45 p.m. At the station, the appellant was visibly intoxicated and falling over. Some of his words were slurred. He needed help to go to the bathroom and hit his head against the wall and also fell off of a bench in the booking area. The breath technician estimated that on a drunkenness scale of one to ten, he was a nine or nine and a half.

[18] The appellant was tried before a judge and jury. He was convicted on December 2, 2015.

Fresh Evidence

(a) The Evidence

[19] Before this court, the appellant seeks leave to admit fresh evidence. It consists of affidavits from the appellant, Yuriy Teodorovych, and Rita Levin, one of the appellant's counsel at trial.

[20] In his affidavit, the appellant states that he has no recollection of the accident and cannot say whether he was the driver or the passenger. He states that he did not testify at trial because he could not remember being in the vehicle. He says that he would not have chosen to drive a motor vehicle in that state of intoxication.

[21] He recalled that earlier on the day of the accident, he had worked with another employee named "Volodya". He does not know his last name. He knew Volodya to occasionally work on short-term projects for Drain City.

[22] The appellant states in his affidavit that after finishing work on the day in question, he "returned to Volodya's residence" and he recalled drinking there with Volodya. He recalls that Volodya's roommate, a man named "Roman", was present at the time. He had no recollection of leaving the residence.

[23] In his affidavit, Mr. Teodorovych states that at the beginning of October 2013, he was looking for a job. It was suggested to him that he should approach the appellant, who was employed as a supervisor at Drain City. He does not say who made this suggestion. They met sometime around October 17-18 and the appellant promised Mr. Teodorovych that he would have a word with his manager regarding employment for Mr. Teodorovych. The appellant told Mr. Teodorovych to meet that Saturday evening at about 6:00 p.m. at a particular location in Mississauga.

[24] Mr. Teodorovych states that he came to the indicated address in the area of Eglinton Avenue East and Delaware Drive in Mississauga and stood by the vehicle bearing the sign "Drain City". He observed two men exiting a house and dragging the appellant to a vehicle. He stated that the appellant was unable to walk on his own. The men said that the appellant was drunk and they asked Mr. Teodorovych to help them get the appellant into the vehicle. Mr. Teodorovych then assisted them in placing the appellant in the passenger seat of the vehicle. They suggested to Mr. Teodorovych that he approach the appellant about a job on Monday. One of the men got behind the steering wheel and drove away with the appellant in the passenger seat. The other man returned to the house. When Mr. Teodorovych attempted to find the appellant the following Monday, he was told that the appellant no longer worked for Drain City.

[25] He states that three years later, in October 2016, he incidentally met the appellant in a store for the first time since the incident. He asked the appellant why he had left Drain City and the appellant told him about the accident. He recounted that he did not remember anything about the accident and Mr. Teodorovych responded with his recollection. Mr. Teodorovych stated that it was not the appellant behind the wheel but another man whom he described as being bulky, of low height, and dressed in a burgundy sweater or sport top and a cap. According to the appellant, Mr. Teodorovych's description of the man was consistent with that of Volodya.

[26] In her affidavit, Ms. Levin confirmed that throughout her retainer as counsel, the appellant had advised that he had no memory of the accident or of being in the vehicle leading up to the accident, apparently due to his excessive alcohol consumption. Furthermore, she had no knowledge of Mr. Teodorovych and had she known of his proposed evidence, she would have taken all necessary steps to call that evidence at trial.

[27] The Crown cross-examined Mr. Teodorovych and the appellant on their evidence. Key features of their evidence consist of the following:

Mr. Teodorovych:

• Mr. Teodorovych testified that, on the day of the accident, he observed the appellant coming out of "either the second or third building" across the street from where they were supposed to meet. If he were to return to the area, he would not "have difficulties" in showing "approximately" which house.

• He described the man he saw driving the van on the day of the accident as "short, like, chubby or whatever, like overweight, and dressed in the burgundy sweater and in the sweatshirt." He indicated that he provided that description to the appellant when they met three years after the incident before the appellant even told him he had been charged.

• He stated that he did not like the man he saw driving the van because he was rude, swearing and slamming the door. Mr. Teodorovych did not mention this in his statement attached to his affidavit because he did not see the point of doing so.

• He did not recall the exact sequence of events on the day of the accident. For example, he did not remember whether he asked the two men about the job when he first approached them or once they were near the van.

• He could not recall whether he had asked any of his acquaintances about the appellant in the three years after the accident.

The appellant:

• The appellant stated that he did not know Volodya's last name and he did not "know him personally at all". Volodya was an occasional worker at Drain City the week before the accident and they never worked together after because the appellant stopped working for the company. The only time the appellant and Volodya worked together was in the week preceding the accident. The appellant had picked Volodya up and dropped him off at a plaza across from Volodya's house every day that week but only went inside his house one time.

• The appellant stated that he did not contact Drain City or his former boss to find out more information about Volodya. He was "not in a good relationship" with Drain City because the company owed him money and because he had been fired.

• He stated that Volodya's house was "across the street" from the plaza where he was supposed to meet Mr. Teodorovych. He returned to the area "a few times" and went to one of the houses to try to find Volodya, but he was not there. The appellant did not ask any of the neighbours if they knew who Volodya was.

• The appellant testified that he had not asked anybody in the plumbing and drain fixing community about who Volodya is because nobody knows him.

• The appellant initially stated that he told the insurance company that he had been framed by Volodya. However, he later testified that he had only told the insurance company that he was working with Volodya, not that Volodya may have been the driver.

(b) Criteria for Admission of Fresh Evidence

[28] Fresh evidence is admissible on appeal where it is in the interests of justice to receive it: Criminal Code, R.S.C. 1985, c. C-46, ss. 683(1)(c) and (d). Before this court, the appellant is seeking a new trial. As I will discuss, in admitting fresh evidence, we must be satisfied that the appellant has met the burden of persuading us that the finality of his conviction should be overtaken to allow for a new trial. The burden of establishing the criteria for admission of the fresh evidence lies on the appellant: R. v. D.J.B., 2018 ONCA 566, at para. 25; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 43.

[29] The decision to admit fresh evidence is a discretionary one: R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775; R. v. Nissan, 89 O.A.C. 389 (C.A.), at para. 8. In R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, Palmer's four components were recast into a three-part inquiry:

• Is the evidence admissible under the operative rules of evidence (the "admissibility" component)?

• Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the "cogency" component)?

• What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence (the "due diligence" component)?

[30] In this appeal, there is no real issue relating to the appellant's ability to satisfy the admissibility or the due diligence components. The evidence of Mr. Teodorovych clearly would have been admissible at trial. The explanation offered by the appellant for his failure to adduce the fresh evidence at trial was that he was intoxicated and had no recollection of the events surrounding the accident including the purported presence of Mr. Teodorovych. This absence of recall responds to the due diligence component. The analysis therefore turns on the cogency component.

[31] The cogency component requires a "qualitative assessment of the evidence" to determine whether it "could reasonably be expected to have changed the result at trial" when considered in the context of the entirety of the evidence admitted at trial and on appeal: Truscott, at para. 100; see also R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 213. Assessing the cogency of the evidence requires the court to identify the purpose or purposes for which it is admissible: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 51; R. v. Allen, 2018 ONCA 498, at para. 96. In Truscott, at para. 99, the court explained that the cogency component addresses three questions: (i) the relevance of the evidence to a decisive or potentially decisive issue at trial; (ii) whether the evidence is reasonably capable of belief; and (iii) whether the evidence is sufficiently probative that it could reasonably be expected to have affected the result.

[32] First, is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial: Truscott, at para. 99. This is a straightforward inquiry and does not require further elaboration.

[33] Second, is the evidence "credible" in the sense of being "reasonably capable of belief": Truscott, at para. 99. The purpose of this second inquiry is not to determine the ultimate credibility of the evidence, but rather to assess whether the evidence is sufficiently cogent to warrant admission on appeal: Snyder, at para. 50.

[34] For example, the cogency of fresh evidence sometimes arises in the context of post-conviction recantations. Given the ease with which recantations may be fabricated, "an especially rigorous qualitative assessment" is required: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 110. This "searching assessment of the credibility of a post-conviction recantation is necessary to give substance to the cogency requirement" and may lead the court to conclude that the proposed recantation evidence is not sufficiently credible and therefore cogent to warrant its admission: M.G.T., at para. 111.

[35] In addition to cases of post-conviction recantations, this court has also rejected fresh evidence based on cogency in other contexts. For example, in R. v. M.M., 163 O.A.C. 46 (C.A.), the appellants pleaded guilty to various offences after they left their children in the care of their ten-year-old child and their six-month-old infant died. On appeal, they sought to admit fresh evidence describing how they had actually entrusted the care of their children to an adult. In rejecting the evidence, the court observed that this new evidence was contradicted by other evidence, conflicted with the appellants' position advanced at trial, and reflected the appellants' ease with changing their evidence to suit their purpose.

[36] In R. v. Winmill, 42 O.R. (3d) 582 (C.A.), this court again dismissed a fresh evidence application in part because it found that the proposed fresh evidence was not reasonably capable of belief. In that case, the appellant was convicted of first degree murder based on the evidence of three unsavoury witnesses, including the appellant's son. On appeal, the appellant sought to admit the fresh evidence of a friend who did not testify at trial but who claimed that the appellant's son, who had been present at the murder, had called the friend many times after the appellant's arrest and told her the appellant had not committed the crime. Osborne J.A. noted, at p. 602, that he only needed to determine whether the fresh evidence was "reasonably capable of belief", not whether he believed it:

In the determination of whether the tendered fresh evidence is reasonably capable of belief, we are required to engage in a form of credibility assessment. We must determine, not whether we believe the fresh evidence, rather, we must determine whether the fresh evidence is "reasonably capable of belief." This was the determining factor in the decision to reject the fresh evidence in Palmer, supra. In Palmer, McIntyre J. made it clear that if the proposed fresh evidence does not pass the "reasonably capable of belief" test, "that ends the matter." In my opinion, when exposed to the required scrutiny, Ms. Bacon's fresh evidence is not reasonably capable of belief.

[37] Turning then to the third and last question in the cogency analysis, the court must ask whether the fresh evidence is "sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result": Truscott, at para. 99. Evidence is not necessarily admissible simply because it has some potential relevance on a material issue: Snyder, at para. 50; R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 176. In R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 24, the Supreme Court explained:

To be admissible, it is not sufficient that the fresh evidence meet the prerequisite of relevance. It must also be credible and such that it could, when taken with the other evidence adduced at trial, be expected to have affected the result. Accordingly, the probative value of the fresh evidence must, to some degree, be reviewed by a court of appeal when it is determining the admissibility of the fresh evidence. The question to be considered was expressed as follows by McIntyre J. in Palmer, supra, at pp. 776‑77:

If presented to the trier of fact and believed, would the [fresh] evidence possess such strength or probative force that it might, taken with the other evidence adduced, have affected the result? [Emphasis added.]

See also McMartin v. The Queen, [1964] S.C.R. 484, at 491, and R. v. Stolar, [1988] 1 S.C.R. 480, at pp. 491-92. The assessment of the probative value of the fresh evidence is, however, limited, since after determining that the evidence is credible, the court of appeal must assume that the trial judge would have believed it.

[Emphasis in original.]

[38] For example, in R. v. Plein, 2018 ONCA 748, Paciocco J.A. rejected fresh evidence from a clinical psychologist who purported to opine on the appellant's cognitive abilities and neuropsychological condition, and therefore on the issue of his capacity to commit the offences for which he was convicted. Paciocco J.A. held that the psychologist's opinions about the appellant's capacity were "so bereft of probative value that they could not reasonably have affected the capacity finding": at para. 65.

[39] In summary, the cogency analysis under Truscott requires the court to consider whether the fresh evidence is relevant, credible and sufficiently probative that it could reasonably be expected to have affected the result at trial.

[40] Ultimately, the "interests of justice" govern whether fresh evidence is admissible on appeal. Importantly, while the "interests of justice" to be considered include the interests of the accused, s. 683(1) of the Criminal Code also embraces broader interests, including the preservation of the integrity of the trial process and the finality of trial verdicts: see R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 106. Reflective of this interest, admission of fresh evidence of facts that were litigated at trial is exceptional: R. v. P.G., 2013 ONCA 520, 301 C.C.C. (3d) 81, at para. 41; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 122. Admission of such evidence is justified only in furtherance of the integrity of the process: P.G., at para. 41.

[41] Although there is an important interest in ensuring that unreliable verdicts are not allowed to stand, there is also a compelling interest in ensuring that the appellate process is not routinely used to re-write the trial record: Allen, at para. 90; P.G., at para. 40. As Doherty J.A. observed in Snyder, at para. 44:

While it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record, often years after the trial. Admitting fresh evidence on appeal of necessity undermines legitimate finality expectations. That negative consequence is justified only if the overall integrity of the process is furthered. Admitting evidence on appeal of facts that were litigated at trial is very much the exception to the accepted appellate process: R. v. M. (P.S.), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.).

[42] As mentioned, the onus is on the party seeking to admit the evidence to establish that it should be received on appeal. The inquiry is necessarily context-sensitive and requires consideration of the totality of the circumstances: Truscott, at para. 81.

(c) Application of Criteria for Admission

[43] I now turn to the application of the test for admission of the fresh evidence to the facts of this case.

[44] I have already discussed and concluded that the admissibility and due diligence components are met and that the analysis therefore turns on the cogency component. As mentioned, this requires a "qualitative assessment" of the proposed fresh evidence in the context of the entirety of the evidence at trial and on appeal.

[45] The Crown concedes the first element in the cogency analysis: the fresh evidence is relevant because it bears on the central issue at trial, namely the identity of the driver who caused the accident. The appellant clearly meets the first element of the cogency analysis.

[46] The real question is whether the second and third elements are met. In my view, they are not.

[47] As discussed, to be admissible, the fresh evidence must be credible in the sense of being "reasonably capable of belief". Although this is not an exercise in determining whether the evidence is ultimately credible, this court must assess whether the evidence is sufficiently cogent to warrant admission on appeal.

[48] The appellant acknowledges that his story is "somewhat unusual". Indeed it is. I accept that Mr. Teodorovych may be characterized as an independent witness and that his evidence is under oath. However, the appellant's failure to make reasonable efforts to ascertain Volodya's identity to support the allegation that he caused the accident, the numerous inconsistencies in the fresh evidence, and the highly improbable nature of the appellant's recent account of what occurred all belie the submission that the fresh evidence is reasonably capable of belief.

[49] The appellant's efforts to ascertain Volodya's identity are seriously wanting. He never contacted his former boss at Drain City to ascertain Volodya's surname. He made no inquiries of Volodya's identity in the plumbing and drain industry where he had contacts. Indeed, on cross-examination, the appellant admitted that he "never bothered to ask anybody who Volodya is". Although he went to one of the houses that looked similar to Volodya's, he did not ask any of the neighbours if Volodya was around, nor did he return to the area with Mr. Teodorovych (who indicated that he would not "have difficulties" in pointing out "approximately" from which house he observed the appellant leaving).

[50] When arguing to disturb the finality of a conviction, an appellant bears the onus to establish that the fresh evidence ought to be admitted and is expected to take reasonable steps to satisfy the court of the cogency component. Here, apart from offering up Mr. Teodorovych's evidence, the appellant did nothing to lend support to his competing theory of the case. In a context-sensitive inquiry, this is a factor to be considered. The cogency component is weakened by the absence of any additional factual foundation.

[51] Furthermore, inconsistencies in the fresh evidence also undermine the credibility of the appellant. When cross-examined, the appellant initially claimed that he told his insurance company that he had been framed by a man who left him at the scene of the accident, that the man was named Volodya and that he had worked with Volodya at Drain City. Of course, that claim was inconsistent with the claim that the appellant recalls nothing of the events surrounding the accident. In re-examination, he resiled from that description, suggesting instead that he only told the insurance company that he had been working with Volodya on the day of the accident and that he had not told anyone, other than in the fresh evidence application, that he was blaming Volodya for the accident.

[52] Mr. Teodorovych's description of the sequence of events changed. He explained during cross-examination that he had not intended to set out the events as they unfolded in his affidavit but rather to capture more generally what had occurred. There were also inconsistencies between the evidence of the appellant and that of Mr. Teodorovych. For example, the appellant stated that he told Mr. Teodorovych to meet him at the plaza near Volodya's house to speak with his boss. The boss was supposed to be meeting the appellant there to pick up payments from the job they had just finished and to pay Volodya. When the boss did not show up at the time he was expected, the appellant and Volodya went to Volodya's house where the appellant estimated, based on his memory, that they spent more than an hour drinking and killing time.

[53] In contrast, according to Mr. Teodorovych, he was not told that he would be able to meet the boss that evening. Moreover, Mr. Teodorovych also stated that the appellant told him to meet at the plaza at 6:00 p.m. and wait near the Drain City van. No explanation was given for why the appellant would have told Mr. Teodorovych to meet at 6:00 p.m. if, according to the appellant, his boss was supposed to meet him and Volodya much earlier.

[54] Furthermore, the highly improbable nature of the appellant's fresh account stretches the reasonably capable of belief standard beyond its permissible bounds. Notably, no witness saw any other person in or around the van at the time of the accident. The witnesses all identified the driver as the man taken away by the police, who was uncontrovertibly the appellant.

[55] The inconsistencies coupled with the improbable nature of the new account and the lack of any diligent effort to ascertain Volodya's identity to bolster the claim that he was the driver serve to support the conclusion that the fresh evidence is not reasonably capable of belief. As such, the appellant has been unable to meet the second element of the cogency component.

[56] The fresh evidence also is not sufficiently probative; it could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Accordingly, the third element is not met either.

[57] I have already touched upon the incredible nature of the evidence, and the other substantial evidence at trial that pointed to the appellant's guilt. Moreover, even if Mr. Teodorovych's evidence is believed, it does not foreclose the appellant being the driver at the time of the accident. Importantly, Mr. Teodorovych indicated that the driver of the van did not look drunk, whereas at the scene numerous witnesses testified that the driver of the van appeared to be intoxicated. This was borne out by the appellant's subsequent breath samples. The location of Volodya's house and the accident also differed. Taken with the other evidence given at trial, the fresh evidence is not sufficiently probative to be expected to have affected the convictions.

[58] In summary, although the fresh evidence meets the admissibility and due diligence components, it fails to meet the cogency component described in Truscott. The cogency component is not met because the evidence is not reasonably capable of belief and is also not sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. At its heart, considering the totality of the circumstances, the interests of justice do not warrant the admission of the fresh evidence on this appeal.

Unreasonable Verdict

[59] As mentioned, the appellant submits that the inconsistencies in the evidence on the identification of the driver of the van coupled with the absence of a thorough police investigation rendered the verdict unreasonable.

[60] The law on unreasonable verdicts is uncontroversial. The question is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[61] Admittedly in this case, certain information was not obtained by the police. Officer Naqvi did not ask the appellant for ownership or insurance documents or seize the key to the van. No photos of the logo on the van or on the appellant's vest were taken. And the van was not dusted for fingerprints. Officer Naqvi did not interview anyone at the scene or record the names of others at the scene, although it is clear that another officer did.

[62] The trial judge instructed the jury on the state of the police investigation:

It is important that you understand that Constable Naqvi could have done further investigation with respect to ascertaining the identity of the driver, and you are entitled to take that into account in assessing the overall reliability of the investigative process which produced the evidence relied on by the Crown to prove this case beyond a reasonable doubt, and help you decide the significance, if any, of the absence of this evidence.

[63] In addition, there were some inconsistencies in the evidence of the witnesses at the scene, most notably their estimates of the driver's height. That said, the evidence before the jury did include the following:

• Ms. Tello testified that immediately after the accident, she saw a white male get out of the driver's seat of the van, kick the Nissan Altima, and sit back in the driver's seat until he met and then departed with the police officers. She did not see anyone else in the van.

• When Officer Carrol arrived six minutes after the accident, the appellant was leaning against the driver's side of the van with the driver's door open.

• The appellant identified himself with a valid driver's licence before he was arrested.

• No one else was seen in or in the vicinity of the van.

• Mr. Linder testified that the driver looked like he was intoxicated.

[64] In the face of this constellation of facts coupled with the trial judge's instruction, it cannot be said that the jury's verdict was unreasonable. A properly instructed jury acting judicially could reasonably have rendered a verdict of guilt in this case.

Disposition

[65] For these reasons, I would dismiss the motion to admit fresh evidence and dismiss the appeal.

Released: "S.E.P." February 19, 2019

"S.E. Pepall J.A."

"I agree. P. Lauwers J.A."

"I agree. Fairburn J.A."